Brief in Opposition to Certiorari

    M a t h e r , G l i m e  a  D a o u s t

A T T O R N E Y S  A T  L A W
C O U N T Y  S Q U A R E  B U I L D I N G

D O N A L D  E .  M A T H E R  
R A Y M O N D  G .  G L I M E  
J A M E S  R .  D A O U S T  
G A R Y  W . W I L D S

£ 5  N O R T H  G R A T I O T  A V E N U E

M O U N T  C L E M E N S ,  M IC H IG A N  4 8 0 4 3

H E R B E R T  J .  R U S I N G  

D A  V  I D A . W I D L A K  

D E N I  S  R . LE  D U C
T E L E P H O N E  

(313) 4 6 3 - 0 5 1 1

October 10, 1973

JACK GREENBERG 
NORMAN J. CHACKIN 
10 Columbus Circle 
New York, New York 10019

Re: Bradley et al vs. Milliken et al
United States District Court 
For the Eastern District of Michigan 
Civil Action No. 35257

Gentlemen:
Enclosed herewith please find a copy of the Motion to 
Dismiss, Affidavits in Support of Motion, Brief in Support 
of Motion to Dismiss and Notice of Hearing set for Monday, 
the 26th day of November, 1973 at 9:00 A.M. We have filed 
the above pleadings this date on behalf of Fraser Public 
Schools and Gerald McCaffrey, only.
Very truly yours,

RGG/djp 
Encs.



I
•  •

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,
Plaintiffs,

vs -

MILLIKEN, et al,

Civil Action 
No. 35257

Defendants.
/

NOTICE OF HEARING

PLEASE TAKE NOTICE that the Defendants, FRASER PUBLIC 

SCHOOLS and GERALD McCAFFRSY, will make application to the 

United States District Court for the Eastern District of 
Michigan, before the presiding Judge thereof, on Monday, the 

26th day of November, 1973, at 9:00 A.M. or as soon thereafter 

as counsel may be heard, upon a Motion to Dismiss in the above 

entitled cause.
This Application is based upon the Motion to Dismiss 

on file in said cause, a copy of which is hereto annexed.

Attorneys for the Defendants, 
FRASER PU3LIC SCHOOLS and 
GERALD McCAFFREY, Only 
25 North Gratiot Avenue 
Mount Clemens, Michigan 48043Dated: October 9, 1973.



UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,
Plaintiffs,

vs.
MILLIKEN, et al,

Civil Action 
No. 35257

Defendants.

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MOTION TO DISMISS 
AFFIDAVIT IN SUPPORT OF MOTION 

BRIEF IN SUPPORT OF MOTION TO DISMISS 
NOTICE OF HEARING 
PROOF OF SERVICE

MATHER, GLIME & DAOUST 
Attorneys for Defendants, 
FRASER PUBLIC SCHOOLS and 
GERALD McCAFFREY, Only 
25 North Gratiot Avenue 
Mount Clemens, Michigan 48043 
463-0511



-* A
A.

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,
Plaintiffs,

vs Civil Action
No. 35257

MILLIKEN, et al,
Defendants.

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MOTION TO DISMISS 

COUNT I
NOW COMES the Defendants in the above entitled action, 

FRASER PUBLIC SCHOOLS and GERALD McCAFFREY, only, by their 
attorneys, MATHER, GLIME & DAOUST, and move this Honorable 
Court to quash service of process made by the United States 
Marshalls’. Office and to dismiss this cause of action for lack 

of jurisdiction for the following reason:
1. Service of process was improperly made pursuant to 

Rule 4 of the Federal Rules of Civil Procedure, 28 U.S.C.
WHEREFORE, the Defendants FRASER PUBLIC SCHOOLS and 

GERALD McCAFFREY, only, respectfully request this Honorable 

Court to enter an Order quashing service of process and 
dismissing this cause of action for lack of jurisdiction.

COUNT II
NOW COMES the Defendants, FRASER PUBLIC SCHOOLS and 

GERALD McCAFFREY, only, by their attorneys, MATHER, GLIME & 
DAOUST, and move this Honorable Court to dismiss this cause of

action for the following reasons:
The Complaint and Amended Complaint fail to state1 .



a claim against the Defendants FRASER PUBLIC SCHOOLS and 
GERALD McCAFFREY upon which relief can be granted;

2. The addition of the FRASER PUBLIC SCHOOLS and 
GERALD McCAFFREY as party defendants under Rules 19 and 21 of 
the Federal Rules of Civil Procedure, 28 U.S.C. by the Order of 

September 10, 1973, at this state of the proceedings, coming over 
three (3) years after the initiation of this suit and after 

extensive litigation has taken place between the parties, 
including (but not limited to) pleadings, motions, orders, 
direct and cross examination of witnesses, findings of fact, 
and a variety of appeals, is an abuse of discretion and cannot 
now be remedied, and is extremely prejudicial to the Defendants, 

violative of due process of law as guaranteed by the Fifth 
Amendment to the Constitution of the United States, contrary to 
the principles of equity and good conscience, and contrary to 
the requirement of Rule 21 of the Federal Rules of Civil 
Procedure, 28 U.S.C., that parties be added "on such terms as 

are just."
3. Notice of the motion to add the FRASER PUBLIC 

SCHOOLS and the FRASER BOARD OF EDUCATION as party defendants 

and the hearing thereon was not served upon the FRASER PUBLIC 
SCHOOLS and the FRASER BOARD OF EDUCATION and an opportunity 
afforded them to be heard until after said motion was once 
ruled upon by the Court and the Order to add them as party 
defendants was already issued, thereby prejudicing the Court 
against any arguments the FRASER PUBLIC SCHOOLS or the members 
of the FRASER BOARD OF EDUCATION might later raise as to why 
they should not be added as party defendants; which lack of 
notice was contrary to the guarantee of due process of law 
under the Fifth Amendment to the Constitution of the United

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States and the principles of equity and good conscience;
4. Any remedy to the alleged wrongs enumerated in the 

Complaint and Amended Complaint imposed upon the FRASER 
PUBLIC SCHOOLS ana a parent and member of the FRASER BOARD OF 
EDUCATION including (but not limited to) the reallocation of 
pupils, teachers, resources, and facilities across the boundary 

lines of this School District would:
(a) be a deprivation of due process of law as 

guaranteed by the Fifth Amendment to tne Constitution 

of the United States because the FRASER PUBLIC SCHOOLS 

and its BOARD OF EDUCATION have not been a party and 
ha^e not been represented in the extensive proceedings 
which have taken place in this case heretofore and have 

not been guilty of any acts alleged in the Plaintiffs 
Complaint or Amended Complaint or the violation of any 

Federal Constitutionally protected right;
(b) result in unreasonable hardship, be unduly 

harsh, and contrary to equity and good conscience;
(c) usurp the Legislative power of the State of 

Michigan and the lawful power of the duly elected Board 
of Education of the FRASER PUBLIC SCHOOLS contrary to 
the Tenth Amendment to the Constitution of the United 

States;
(d) impose a particular racial balance and a fixed 

racial quota upon the FRASER PUBLIC SCHOOLS unnecessary 
to the requirements of the Fourteenth Amendment to the 
Constitution of the United States and contrary to the 

Tenth Amendment to the Constitution of the United 

States;
(e) create a cumbersome and unwieldy school

3



•  •

administrative district, hamper sound education and 

curtail decentralized and diversified locally controlled 
schools more accessible and responsive to both black 

and white parents and to their school age children 
(while leaving this benefit available to parents and 
children in other areas of the State of Michigan who 
fortuitously live a greater distance from the City of 
Detroit, than do the parents and children residing in 
the FRASER PUBLIC SCHOOL DISTRICT) unnecessary to the 
requirements of the Fourteenth Amendment and contrary 
to the Tenth Amendment to the Constitution of the United 

States;
(f) render useless the right of the electors of 

the FRASER PUBLIC SCHOOLS DISTRICT to cast ballots for 
members of the FRASER PUBLIC SCHOOLS BOARD OF EDUCATION 
since local board members would no longer control the 
organization and administration of the schools the 
Fraser children attend, unnecessary under the Fourteenth 
Amendment to the Constitution of the United States and 
contrary to the Tenth and Fifteenth Amendments to the 

Constitution of the United States?
(g) discriminate against parents and children who 

wish to participate in school centered, extracurricular, 

social or athletic activities;
(h) destroy local programs tailored for local 

needs;
(i) disregard the right of private contract as 

guaranteed by Article I, Section 10 of the Constitution 

of the United States;
(j) be contrary to the right of free association

4-



as guaranteed by the First Amendment to the Constitution 

of the United States;
(k) be contrary to the right to travel, to settle, 

and to partake of the benefits of a new place as 
guaranteed by the First and Fifth Amendments to the 

Constitution of the United States;
(l) be the imposition of a penalty upon the 

Defendants without a judicial trial and therefore a 
bill of attainder in violation of Article I, Section 9 
of the Constitution of the United States, and Article 3 

of the Constitution of the United States;
(m) be unnecessary under the Fourteenth Amendment 

and contrary to the Tenth Amendment to the Constitution 

of the United States since the establishment 'and 

maintenance of the FRASER PUBLIC SCHOOLS by the FRASER 
BOARD OF EDUCATION has never been invidiously motivated 
intended to circumvent any federally protected right

of any citizen;
(n) be unnecessary under the Fourteenth Amendment 

and contrary to the Tenth Amendment since the FRASER 
PUBLIC SCHOOLS by the FRASER BOARD OF EDUCATION have 
taken no action whatsoever for the purpose of keeping 
their schools predominately white, nor excluded any 
child from any school within the District on account 
of race, and are therefore a unitary school district;
5. That on or about October 9, 1973, the movants

reguested the concurrence of Plaintifrs- counsel in the relief 

sought in this Motion as required by Rule IX (a) of the Rules 

for the United States District Court for the Eastern District 

of Michigan, and concurrence was denied.



X Jf

WHEREFORE, the Defendants, FRASER PUBLIC SCHOOLS and 

GERALD McCAFFREY, only, respectfully move that an Order of 
Dismissal be entered in this action for the foregoing reasons.

Attorneys for the Defendants, 
FRASER PUBLIC SCHOOLS and 
GERALD McCAFFREY, Only 
25 North Gratiot Avenue 
Mount Clemens, Michigan 48043 

Dated: October 9, 1973 463-0511

6-



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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al
Plaintiffs

vs. Civil Action 
No. 35257

MILLIKEN, et al
Defendants.

/

AFFIDAVIT

NOW COMES SHARRON HENDERSON of the City of Fraser, 
County of Macomb and State of Michigan and being duly sworn 
deposes and says that:

(a) She is a clerical secretary in the personnel 
office of the Fraser Public Schools;

(b) On September 20, 1973 she was served with_a 
copy of the Summons, Complaint, and Amended Complaint 
in the case of Bradley, et al vs, Milliken et al., 
Civil Action No. 35257,

(c) She is not an agent appointed to receive 
service of process for the Fraser Public Schools,^the 
Fraser Superintendent, the Fraser Board of Education 
or any member thereof,

and further deponent sayeth not.

*- i -Tf
SHARRON HENDERSON”

Subscribed and sworn to before 
me this / d  day of October, 1973.

7

Michigan
M̂  ^  .



UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,
Plaintiffs,

Civil Action 
No. 35257

Defendants.

/

vs.

MILLIKEN, et al,

AFFIDAVIT

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NOW COMES GERALD McCAFFREY of the City of Fraser, County 
of Macomb and State of Michigan and being duly sworn deposes 
and says that:

(a) He is a trustee of the Fraser Public 
Schools Board of Education;

(b) At no time has he been served with a copy of 
the Summons, Complaint, or Amended Complaint in the 
case of Bradley, et al vs. Milliken, et al., Civil 
Action No« 35257,

and further deponent sayeth not.

Subscribed and sworn to before 
me this 10th day of October, 1973.

n _A/ /
Diane J. BambachNotary Public, Macomb County, Michigan 
My Commission Expires: January 18, 1976



UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF MICHIGAN 

BRADLEY, et al,
Plaintiffs,

vs Civil Action 
No. 35257

MILLIKEN, et al,
Defendants

/

AFFIDAVIT IN SUPPORT OF MOTION

STATE OF MICHIGAN)
) ss.

COUNTY OF MACOMB )

RAYMOND G. GLIME and DENIS R. LeDUC, having first been 
duly sworn, depose and say that they have read the foregoing 
Motion to Dismiss by them signed, and that the same is true 
to their knowledge, except as to those matters therein stated 
to be upon information and belief and as to those matters therein 
stated to be upon information and belief and as to those matters

a

they believe them t<- r~\ f  y i v

Subscribed and sworn to before 
me this / &  day of October, 1973

w L *  0 /CUi
DARLENE J. PATRICK
Notary Public, Macomb County, Mich. 
My commission expires: May 21, 1976



UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,
Plaintiffs,

vs. Civil Action
No. 35257

MILLIKEN, et al,
Defendants,

BRIEF IN SUPPORT OF MOTION TO DISMISS

1. Proper service of process not having been made upon 

the Defendants, FRASER PUBLIC SCHOOLS and GERALD McCAFFREY, 

Trustee of the Fraser Board of Education, in accordance with 
Rules 4(d) (1) and 4(d) (6) of the Federal Rules of Civil 
Procedure, 28 U.S.C., this Court is entirely without jurisdiction
over these Defendants and this action must be dismissed. As 
to the Defendant, FRASER PUBLIC SCHOOLS, service of process was 
attempted (as demonstrated by the Affidavit attached hereto) but 
was improper because it was not in accordance with Rule 4(d)(6) 
of the Federal Rules of Civil Procedure, 28 U.S.C. which reads:

"Service shall be made as follows: . . .(6)
upon a State or municipal corporation or other 
governmental corporation thereof subject to suit, 
by delivering a copy of the summons and complaint 
to the chief executive officer thereof or by 
serving the summons and complaint in the manner 
prescribed by the law of that state for the service 
of summons or other like process on any such 
defendant." Rule 4(d)(6), Federal Rules of Civil 
Procedure, 28 U.S.C.

The applicable Michigan law referred to is M.C.L. 600.1925(5):
"Service of process upon public, municipal, 
quasi municipal, or governmental corporations, 
unincorporated boards, or public bodies may be 
made by leaving a summons and copy of the 
complaint with . . . (5) the president, secretary,
or treasurer in the case of school districts."



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Service of process in this case not having been made upon the 
chief executive official of FRASER PUBLIC SCHOOLS (being the 
president of the Fraser Public Schools Board of Education) or ±n 
accordance with M.C.L. 600.1925(5), any alleged service of 
process was improperly made and should be quashed by this Court 

and this case dismissed for lack or jurisdiction.
As to the Defendant, GERALD McCAFFREY, no attempt 

whatsoever to achieve proper service of process has been made 

by the United States Marshall and therefore this case must be 
dismissed against the Defendant, GERALD McCAFFREY, for the lack 
of jurisdiction. Rule 4(d)(1), Federal Rules of Civil Procedure,

28 U.S.C.

2. The Plaintiffs have failed to state a claim against 

the Defendants, FRASER PUBLIC SCHOOL^? and GrRALD McCAFFREY,

upon which relief can be granted.
This is a desegregation case with the Plaintirfs alleging 

that they have been denied a Federal Constitutional right uo 
integrated schools. No allegation whatsoever has been made 
that the establishment, organization or administration of the 

FRASER PUBLIC SCHOOLS has been in any way invidiously motivated. 

There is no allegation whatsoever that the FRASER PUBLIC 
SCHOOLS are anything but an integrated, unitary school sysuem 

fully in accord with the requirements of the Fourteentn 
Amendment. Intentional discriminatory actions by the Defendants 

must be alleged before there can be any claim to relief. Absent 
such allegations, the Plaintiffs have failed to state a proper 

claim against the Defendants, FRASER PUBLIC SCHOOLS and 
GERALD McCAFFREY. Since judicial authority may only be 
exercised when there is a constitutional violation, this case

' ' • •

2-



must be dismissed. Green v. School Board of New Kent County,

391 U.S. 430 (1968); Swann v„ Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1 (1971); Alexander v. Holmes County Board 

of Education, 396 U.S. 19 (1959).

3. The addition of the FRASER PUBLIC SCHOOLS and 

GERALD McCAFFREY as party Defendants at this late stage in these 
proceedings has clearly abused the discretion granted to the 

Court under Rules 19 and 21 of the Federal Rules of Civil 
Procedure. Rule 21 specifically permits a change of parties 

"at any stange in the action,," Rule 21, Federal Rules of Civil 
Procedure, 28 U.S.C.; but the Court should deny the request to 
add additional parties if it comes so late in the litigation 
that it would cause prejudice. Petit v. George A. Rheman Co.,
1 F.R.D. 271 (N. D. Ga. 1940). While normally the decision to 
add or drop a party is in the sound discretion of the Court 
(Barr Rubber Products v. Sun Rubber Co. 425 F„2nd 1114 [2nd Cir. 
1970]) it is clearly an abuse of discretion under the particular 
circumstances of this case.

The order of September 10, 1973, by which the FRASER 
PUBLIC SCHOOLS and GERALD McCAFFREY were added as party defendants 
has come over three (3) years after the initiation of this suit.

In that interim period there have been pleadings, motions, 
orders, voluminous testimony, a trial, findings of fact, and 

several appeals. Since the FRASER PUBLIC SCHOOLS is an 
independent municipal body with the power to sue and to be 
sued, organized and administered by the Fraser Board of Education 
(elected by and responsible to the electors of the FRASER SCHOOL 
DISTRICT), they have a fundamental right to be informed of any 
complaint against them, to cross-examine witnesses and to call

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witnesses on their own behalf. These rights are secured to 

them by the Fifth Amendment to our Constitution and cannot be 

denied. Addition as party Defendants at this late stage in 
these proceedings has effectively prejudiced FRASER PUBLIC 

SCHOOLS and GERALD McCAFFREY by denying them this fundamental 
right. Almost all of the essential issues in this case have 
already been determined and addition of new party Defendants at 
this stage must necessarily constitute an abuse of discretion

by the Court.
The restricted hearing granted to these new Defendants 

would not remedy the severe prejudicial violations of their 

civil rights. Though it may appear harsh, this case should be 

dismissed and reinitiated by the Plaintiffs from the very 
beginning. The Plaintiffs themselves have caused this dilemma 

by failing to join all necessary parties (or to inform the 
court of all necessary parties not so joined as required by 
Rule 19(c) of the Federal Rules in Civil Procedure, 28 U.S.C.h

j

In balancing the potential inconvenience to the Plaintiffs, 
caused by their own inactions,against the immense injury to 
the civil liberties of the Defendants, it is clear that the 
convenience of the Plaintiffs must yield. If the Court allows 

these proceedings to continue, the rights of the Defendants 
will have been trampled, and the discretion of the Court to 
add new party Defendants so severely abused as to necessitate 
reversal. Hargrove v. Louisville and Nashville Railroad Company 

153 F. Supp. 681 (W. D. Ky. 1957).

4. An opportunity to be heard in a meaningful way is 

guaranteed by the Fifth Amendment to the Constitution of the 
United States. Armstrong v. Manzo, 380 U.S. 545 (1956). Thi

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right was likewise denied the Defendants by lack of notice of the 

motion to add new party Defendants and the lack of any opportunity 
to be present and to be heard on that motion before it was once 
ruled upon by the Court and the order to add them as party 

Defendants already issued. The first hearing on that motion 
was the critical time when the Court would consider all the 
arguments against adding the new defendants. It would necessarily 
have to consider the timeliness of the motion, possible prejudice 
to any of the present parties involved and prejudice to the 

parties to be added. Once having decided these issues without 
the benefit of argument of counsel on behalf of the new party 
Defendants the Court would be indisposed to any additional 
arguments the new Defendants might later raise as to why they 
should not be added as party Defendants. The important decision 

having been made in their absence, they have been denied a 
meaningful hearing as guaranteed by the Fifth Amendment.

Any proposed new Defendants are in the difficult position 
of having to rely on the parties already in the suit to assert 
their interests even though the parties already in the suit may 
not vigorously oppose the addition of the new parties or be 
ill equipped to assert those interests. This conflict may only 
be eliminated by giving notice to the party to be added and 
allowing them to ap£)ear and to put forth their arguments as to 

why they should or should not be added as party Defendants in the 
case at the initial hearing on the motion to add additional 
parties.

5. Any remedy to the alleged wrongs enumerated in 

the complaint and amended complaint which would be imposed upon 
the FRASER PUBLIC SCHOOLS and a parent and member of the Fraser

5



*

Board of Education such as the reallocation of pupils, teachers 

resources, and facilities across the boundary lines of che 

school district would:
(a) Be a denial of liberty and property without

/

due process of law as guaranteed by the Fifth Amendment

to the Constitution of the United States since the 

Defendants have never had a trial, a judicial hearing, or 

any opportunity to be heard in this case. They have 
not been present to examine and cross-examine witnesses 
or to enter any objections to these proceedings. Therefor 
any possible remedy imposed in this case would not only 
be a denial of due process of law but a complete denial 
of any process of law whatsoever blatantly in violation 
of the requirements of the 5th Amendment. Armstrong v . 
Manzo, 380 U.S. 545 (1965); Jenkins v. McKeithen, 395

U.S. 411 (1969).

{
i

(b) Result in an unreasonable hardship, be unduly

harsh and contrary to equity anu. goo^ conscience. rnV* /̂ v 
r u ' s i

Defendants have done nothing wrong. No allegations or 

findings have been made that the FRASER PUBLIC SCHOOLS 
or GERALD McCAFFREY have operated other than a completely 
desegregated, unitary school system in full compliance 
with the Fourteenth Amendment. That is all that can be 
asked of them. Bradley v. School Board of the City of 
Richmond, 462 F.2d 1058 (4th Cir. 1972), affirmed per 
curiam, 93 S.Ct. 1952 (1973); United States v. Texas
Education Agency, 467 F.2d 848 (5th Cir. 1972); Keyes v. 
School District No. 1, 445 F .2d 990 (10th Cir. 1971).
Reallocation of pupils, teachers, resources, and



#

facilities across the boundary lines of the school 
district would be a harsh and unconscionable remedy— time 

and money consuming and disruptive of good education, 
contrary to the obvious advantages of local schools 
locally controlled in close working cooperation with 
parents. The FRASER PUBLIC SCHOOLS and the Fraser 
Board of Education do not control housing patterns. They 
stand ready to welcome Negro children into any school in 

the district so long as the child is a resident of the 
district. Under these circumstances, any remedy which 

could be rendered in this case, being unduly harsh and 
unconscionable, is beyond the equitable powers of this 

Court.
(c) Usurp the Legislative and Administrative power 

of the State of Michigan and the duly elected Board 
of Education of the FRASER PUBLIC SCHOOLS. "The powers 
not deligated to the United States by the Constitution 
nor prohibited to it by the States are reserved to the 
States respectively or to the people." Tenth Amendment 
to the Constitution of the United States. This is a 

fundamental element of our entire form of Federal 
government. If invidious discrimination in the 
establishment or maintainence of the FRASER PUBLIC 
SCHOOL DISTRICT was shown, then this principal must 
yield; but absent such a showing, it is constitutionally 
prohibited to the United States to interfere with the 
internal affairs of the State and its people, and there 
has been no such showing (indeed not even such an 
allegation) that the Fraser Board of Education have 
in any way established or maintained their district as

7-



an instrument of invidious discrimination. There must 

be such a finding of purposeful discrimination by the 
Defendant before the United States, through its Courts, 

has the power to order any restructuring or in any way to 
interfere with the internal affairs oj. the FRa.SER PUBLIC 
SCHOOLS. They must show intentional discriminatory 
acts by the FRASER PUBLIC SCHOOLS or the Fraser Board of 
Education causally connected to segregation within the 

District. There has been no finding of this; there has 
been no allegation of this; and, th.erei.ore, uhe^e may oe 

no remedy. Bradley v. School Board of the City of 

Richmond, 462 F.2d 1058 (4th Cir. 1972), afrirmed—ppa. 

curiam, 93 S.Ct. 1952 (1973); United States v. Texas 
Education Agency, 467 F.2d 848 (5th Cir. 1973); Keyes 
v. School District Ho. 1, 445 F.2d 990 (10th Cir. 1971); 

Spencer v. Kugler, 326 F. Supp. 1235 (D. N.J. 1971), 
affirmed, 404 U.S. 1027 (1972); Deal v. Cincinnati Board 
of Education, 419 F.2d 1387 (6th Cir. 1969); Goss v.
Board of Education of the City of Knoxville, C.A. 6, 

72-1766-1767 (July 18, 1973).
(d) Impose a particular racial balance and a fixed 

racial quota upon the FRASER PUBLIC SCHOOLS— in effect 

saying that the number of Negro children presently 
attending the FRASER PUBLIC SCHOOLS are necessarily 
inadequate to integrate this district and that a certain 
fixed quota of Negro children must be transferred to 

Fraser and a fixed quota of Fraser children sent to other 
districts in order to comply with requirements of the 
14th Amendment. This imposition of a particular racial 

balance and a fixed racial quota has specifically been

-8-



ruled unnecessary for desegregation. Swann v. Charlotte- 

Mecklenburg Board of Education,. 402 U.S. 1 (1971);
Bradley v. School Board of the City of Richmond, 462 
F .2d 1058 (4th Cir. 1972).

(e) Create a cumbersome and unwieldy school district, 
hamper sound education, and curtail decentralized, 
diversified and locally controlled schools, more 
accessible and responsive to both black and white parents 
and their school aged children. Such a remedy would leave 

the valuable benefit of local schools available to parents 
and children in other areas of the State of Michigan who 
fortuitously live a greater distance from the City of 
Detroit than do parents and children residing in the 

FRASER PUBLIC SCHOOLS DISTRICT. This remedy would 
necessarily discriminate against any parents and children 
who wish to participate in school centered, extra­
curricular, social and athletic activities and render 
school administrators unable to tailor local programs to 
fit local needs. Such destruction to sound education
is unnecessary to the requirements of the 14th Amendment 
and contrary to the 10th Amendment to the Constitution 
of the United States.

(f) Render useless the right of the electors of the 
FRASER PUBLIC SCHOOLS DISTRICT to cast ballots for members 
of the FRASER PUBLIC SCHOOLS Board of Education since 
local school board members would no longer control the 
organization and administration of the schools the Fraser 

children attend. As a member of the Republic, each 
citizen has an inherent right to vote which is equal to 
that of every other citizen. Just as the right to vote

9-



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may be diluted by disproportionate representation 
(Reynolds v. Sims, 377 U.S. 533 [1964]), so also it may be 

diluted by eliminating the effectiveness of each vote.

It is obvious that allowing one Senator to cast a full 

vote, but another to cast only half a vote, would 
prejudicially dilute the right to vote belonging to the 

latter Senator's constituents. So too the ability to 
vote for local school board members is diluted and perhaps 
rendered useless when the elected school board members 
no longer are responsible for the organization and 
administration of the schools where the children of their 
electors attend. Such action is unnecessary under the 

14th Amendment and contrary to the 10th Amendment and
15th Amendment to the Constitution of the United States.

(g) Endanger resources of the school districts 
pledged by contract as security for the indebtedness of that

district and thereby disregard the right of private
.  y .  m  f ~ f  - i -* — \  " v *  w  4 —  /*~ \ /•— v V x  t  t  7 \  "V - * "1 f~ s  1 *  . o '

u O H  C - J L  a u  L  C I O  U-j S L C l i .  C U i  U - t t  C U  J T \ J ~  L - t O  X O  —  /
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Constitution of the United States. Such a remedy would 
also disrupt the contractual rights of teachers and other 

personnel employed by the district in the same manner.
(h) Be contrary to the fundamental right of free 

association as guaranteed by the 1st Amendment to the 
Constitution of the United States. Aptheker v. Secretary 

of State, 378 U.S. 500 (1964).
(i) Be contrary to the right to travel, to settle and 

to partake the benefits of a new place as guaranteed by the 
1st and 5th Amendments to the Constitution of the United 
States. Citizens have a clear and fundamental right to 

move wherever they wish within or without a state.

-10



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Aptheker v. Secretary of State, 378 U .S• 500 (1964).
An important aspect of this right is necessarily the 
ability to settle in any community a citizen chooses. 
That right should not be denied or diluted as to any 
citizen black or white; but any community so chosen is 
much more than a mere address. It is a home and a 
community. It consists of neighbors, churches, shops, 
and most importantly a local school system, and that 

free choice of a community is useless if such an 
important aspect as its local schools can be deprived 

to its residents without cause. Such action is a clear 
denial of the fundamental freedom to travel, inherent to 

citizenship in the United States.
(j) Be the imposition of a penalty upon the Fraser 

Public Schools and the Fraser Board of Education and the 
people they represent without benefit of a judicial 
trial and therefore either beyond the powers of the 
Court as granted under Article III of the Constitution 
and the laws of the United States or, if such power is 
granted to the Courts, clearly a bill of attainder in 
violation of Article I, Section 9 of the Constitution of 

the United States.
(k) Be unnecessary under the Fourteenth Amendment 

and contrary to the Tenth Amendment to the Constitution 

of the United States since the FRASER PUBLIC SCHOOLS 
have never been established or maintained by the Fraser 
Board of Education with invidious motives or with the 
intention to circumvent or deny any Federally protected 
right of any citizen. The FRASER PUBLIC'SCHOOLS and the

11



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Fraser Board of Education have taken no action whatso 
ever for the purpose or keeping their schools predominably

white nor excluded any child from any school within the 

District on account of the child's race, The FRASER 
PUBLIC SCHOOLS are a unitary School District fully in 
compliance with the requirements of the Fourteenth 
Amendment, Green v, School Board of New Kent County,
391 U.S. 430 (1968); Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1 (1971). That there are 
some predominatly white districts existing in outlying 

metropolitan areas does not in and of itself show any 
deprivation of constitutional rights to any citizen so 

long as the racial makeup of the District is, the product 

of neutral and non-discriminatory forces. Without 
any finding of invidious discriminatory acts by the 
FRASER PUBLIC SCHOOLS and the Fraser Board of Education, 
there is no violation of the Fourteenth Amendment and

hence this Court is without power to n n  4- m ’ c f
Ut»U.i.jy UX1C uuiiu.iiJ.uuxu,

tive power of the Fraser Board of Education or the 
FRASER PUBLIC SCHOOLS granted them by the people of 
Fraser. Such blatant intervention into the affairs of 
the state and of the people without constitutionally 
santioned cause is clearly tanned by the Tenth Amendmen 

to the Constitution of the United States, Bradiey v.

L.

School Board of the City of Richmond, 462 F .2d 1058 
(4th Cir. 1972), affirmed per curiam, 93 S.Ct. 1952 (1973) 

United States v. Texas Education Agency, 467 F .2d 848 
(5th Cir. 1972); Keyes v. School District No. 1, 445 F .2d 
990 (10th Cir. 1971); Spencer v. Kuglsr, 326 F. Supp.

12



]

«

1235 (D. N.J. 1971), affirmed, 404 U.S. 1027 (1972);
Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th 

Cir. 1969); Goss v. Board of Education of the Citv of 
Knoxville, C.A. 6, 72-1766-1767 (July 18, 1973).

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Dated: October 9, 1973. Respectfully submitted,

G. Giime

D enifs".R. L e Du c
Attorneys for Defendants, 
FRASER PUBLIC SCHOOLS and 
GERALD McCAFFREY, Only 
25 North Gratiot Avenue 
Mount Clemens, Michigan 48043

By

MATHER,

463-0511

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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,
Plaintiffs,

vs.
MILLIKEN, et al,

Defendants.

Civil Action 
No. 35257

/

NOTICE OF HEARING

PLEASE TAKE NOTICE that the Defendants, FRASER PUBLIC 

SCHOOLS and GERALD McCAFFREY, will make application to the 
United States District Court for the Eastern District of 
Michigan, before the presiding Judge thereof, on Monday, the 
26th day of November, 1973, at 9:00 A.M. or as soon thereafter 

as counsel may be heard, upon a Motion to Dismiss in the above 

entitled cause.
This Application is based upon the Motion to Dismiss 

on file in said cause, a copy of which is hereto annexed.

Dated: October 9, 1973.

Attorneys for the Defendants, 
FRASER PUBLIC SCHOOLS and 
GERALD McCAFFREY, Only 
25 North Gratiot Avenue 
Mount Clemens, Michigan 48043



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UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN

BRADLEY, et al,

Plaintiffs,
vs.

MILLIKEN, et al,
Defendants.

________________________________________________________ /

PROOF OF SERVICE

Civil Action 
No. 35257

STATE OF MICHIGAN)
) ss.

COUNTY OF MACOMB )

DARLENE J. PATRICK, being first duly sworn, deposes and 
says that she is employed in a secretarial capacity by the firm 
of MATHER, GLIME & DAOUST, attorneys for the Defendants, FRASER 
PUBLIC SCHOOLS and GERALD McCAFFREY, Only, and that she served 
a copy of the Motion to Dismiss, Affidavits in Support of Motion, 
Brief in Support of Motion to Dismiss and Notice of Hearing 
upon the attorneys on the attached list by placing the same in 
an envelope with sufficient postage addressed to each of them 
and by depositing the same in a regular United States Mail 
receptacle located in Mount Clemens, Michigan, on October 10,

1973.
Further, deponent sayeth not,

DARLENE J. PATRICK
//0

Subscribed and sworn to before 
me this 10th day of October, 
A.D., 1973.

T - J/IS'yA A' * /V_ ̂
DIANE J ./• BAM3ACH
Notary Public, Macomb County, Michigan 
My Commission Expires: January 18, 1976.



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PAUL R. DIMOND
906 Rose Avenue
Ann Arbor, Michigan 48104

J. HAROLD FLANNERY 
CENTER FOR LAW & EDUCATION 
Larsen Hall 
14 Appian Way 
Cambridge, Mass. 02138

JACK GREENBERG 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019
WILLIAM M. SAXTON
1831 First National Building
Detroit, Michigan 48226

DOUGLAS H. WEST
3700 Penobscot Building
Detroit, Michigan 48226

LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

NATHANIEL JONES
1790 Broadway
New York, New York 10019

ELLIOTT HALL
950 Guardian Building
Detroit, Michigan 48226

GEORGE T. ROUMELL, JR.
7th Floor Ford Building 
Detroit, Michigan 48226

FRANK J. KELLEY 
Attorney General 
Law Building 
525 W, Ottawa,
Lansing, Michigan 48913



O'BRIEN, MORAN & DIMOND
ATTORNEYS AND COUNSELLORS AT LAW 

210 EAST HURON STREET 
ANN ARBOR, MICHIGAN 48108 

(313) 769-6838
THOMAS C. O'BRIEN 
MICHAEL C. MORAN 
PAUL R. DIMOND

October 8, 1973

The Honorable Stephen J . Roth 
U. S. District Court 
Federal Building 
600 Church St.
Flint, Michigan
Dear Judge Roth,

Please find enclosed an original for filing 
and a copy of a motion and proposed order to amend this 
Court’s September 10, 1973 Order to add as parties 
defendant in this cause the Boards of Education, their 
members and the superintendents of the Intervening School 
Districts Allen Park, et. al. Counsel for the intervening 
school districts, their boards, their members and^superintend­
ents have consented to this motion. Although it is my view that 
this action has already "commenced” against these boards of 
Education, their members and the superintendents of the in­
tervening school districts by the filing of the amended 
complaint and its service upon them, I believe the record will 
be clarified for all concerned if the Court grants the 
enclosed motion.

Very truly yours,

cc: Counsel of Record

Re: Civil Action
No. 35257

mjh
e n d s .



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs, Civil Action

No. 35257
vs.

WILLIAM G. MILLIKEN, et al.,
Defendants.

/------------- —  ■ —— — j
i

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MOTION TO AMEND NUNC PRO TUNC 
THIS COURT'S SEPTEMBER 10, 1973 
ORDER JOINING PARTIES DEFENDANT 
TO ADD AS PARTIES DEFENDANT THE 
BOARDS OF EDUCATION, THEIR MEMBERS,
AND THE SUPERINTENDENTS OF THE 
INTERVENING SCHOOL DISTRICTS._____

Plaintiffs hereby move this Court to amend 

Nunc Pro Tunc its September 10, 1973 Order joining parties
defendants to add as parties defendants in this cause the 
Boards of Education, their members and the Superintendents of

I

the intervening school districts:
!Allen Park Public Schools, School District of 

the City of Berkley, Brandon Schools, Centerline 
Public Schools, Cherry Hill School District,
Chippewa Valley Public Schools, School District 
of the City of Clawson, Crestwood School District, 
Dearborn Public Schools, Dearborn Heights School 
District No. 7, East Detroit Public Schools, School 
District of the City of Ferndale, Flat Rock Community 
Schools, Garden City Public Schools, Gibraltar 
School District, School District of the City of 
Harper Woods, School District of the City of Hazel 
Park, Intermediate School District of the County of 
Macomb, Lake Shore Public Schools, Lakeview Public 
Schools, The Lamphere Schools, Lincoln Park Public Schools,



Wayne-Westland Community Schools, Woodhaven School District
Madison District Public Schools, Melvindale-
North Allen Park School District, School
District of North Dearborn Heights, Novi Community
School District, Oak Park School District, Oxford
Area Community Schools, Redford Union School
District No. 1, Richmond Community Schools,
School District of the City of River Rouge,
Riverview Community School District, Roseville 
Public Schools, South Lake Schools, Taylor 
School District, Warren Consolidated Schools,
Warren Woods Public Schools, Wyandotte 
Public Schools, Southfield Public Schools, School 
District of the City of Royal Oak, and the 
Grosse Pointe Public School System.
In support of this motion Plaintiffs would show

this Court that:
1. Counsel for the intervening school districts, 

Boards of Education, their members and superintendents have

consented to this motion.
2. Plaintiffs1August 3, 1973 Motion to Join

and Substitute Parties included these parties.
3. The boards of education, their members, 

and the superintendents of all other school districts 
(with exception of Pontiac) in the tri-county area have 
already been joined as parties defendant by this Court's

order of September 10, 1973.
4. Service of process of plaintiffs' amended

complaint has been made upon the boards of education,
their members and superintendents of the intervening school

districts and accepted on their behalf by their counsel.
been

5. Therefore, this action has already/"commenced 

by plaintiffs against the boards of education, their members 
and the superintendents of the intervening school districts 

as parties defendant.



school districts are already6. The intervening

parties defendant in this cause; and
7. Amending this Court's prior order nunc pro

tunc as prayed for in this motion will clarify for all 
concerned the status of the boards of education, their 
members and the superintendents of the intervening school 

districts as parties defendant.

Respectfully submitted,

RATNER, SUGARMON & LUCAS 
525 Commerce Title Building 
Memphis, Tennessee 38103

NATHANIEL JONES
1790 Broadway
New York, New York 10019

PAUL R. DIMOND 
210 E. Huron
Ann Arbor, Michigan 48108
J. HAROLD FLANNERY
Center for Law and Education
Larsen Hall
14 Appian Way
Cambridge, Mass. 02138
JACK GREENBERG
NORMAN J . CHACHKIN
10 Columbus Circle
New York, New York 10019

Dated: October 8, 1973
mjh



CERTIFICATE OF SERVICE

The foregoing Motion and Proposed Order 
has been served upon all counsel of record by United States 
Mail, postage prepaid, this 8th day of October, 1973.

/k u j? /? . Uo^c^-c/ f )
PAUL R. DIMOND
210 E. Huron
Ann Arbor, Michigan 48108



! ! j t! I
UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION
|-j 
} i

RONALD BRADLEY, et al., 
Plaintiffs,

vs.

Civil Action 
No. 35257

jl* |M

WILLIAM G. MILLIKEN, et al. ,
Defendants.

/

ORDER TO AMEND NUNC PRO TUNC

II

At a session of said Court held 
in the Federal Building, City of 
Flint, County of Genesee, on

PRESENT! HONORABLE STEPHEN J. ROTH
United States District Judge

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It is ordered that the September 10, 1973 

Order of this Court is hereby amended nunc pro tunc to add 
as parties defendant in this cause the Boards of Education, 
their members and the Superintendents of the Inuervening 

School District:
Allen Park Public Schools, School District of the 
City of Berkley, Brandon Schools, Centerline Public 
Schools, Cherry Hill School District, Chippewa Valley 
Public Schools, School District of the City of Clawson, 
Crestwood School District, Dearborn Public Schools, 
Dearborn Heights School District No. 7, East Detroit 
Public Schools, School District of the City of 
Ferndale, Flat Rock Community Schools, Garden City 
Public Schools, Gibraltar School District, School District

■



\
I

of the City of Harper Woods, School District of 
the City of Hazel Park, Intermediate School District 
of the County of Macomb, Lake Shore Public Schools,
Lakeview Public Schools, The Lamphere Schools,
Lincoln Park Public Schools, Madison District 
Public Schools, Melvindale-North Allen Park School 
District, School District of North Dearborn Heights,
Novi Community School District, Oak Park School 
District, Oxford Area Community Schools, Redford 
Union School District No. 1, Richmond Community 
Schools, School District of the City of River Rouge, 
Riverview Community School District, Roseville 
Public Schools, South Lake Schools, Taylor School 
District, Warren Consolidated Schools, Warren Woods 
Public Schools, Wyandotte Public Schools, South-
field Public Schools, School District of the City of 
Royal Oak, and the Grosse Pointe Public School System,. 
Wayne-Westland Community Schools, Woodhaven School District.

j

I
DATED: